On appeal from a judgment of the District Court of the Fourth Judicial District of Bergen county.
For the plaintiff-appellee, William H. J. Ely (C. Conrad Schneider, of counsel).
For the defendant-appellant, Drewen & Nugent (John Drewen, of counsel).
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiff is the named beneficiary in a policy of insurance issued by the defendant on the life of Stanislaw Slomienski, her father. The policy was issued on December 16th, 1936, and provided for the payment to the plaintiff of the sum of $350 upon satisfactory proof of the death of the insured. He died on February 24th, 1937. This action is to recover the sum claimed to be due under the policy.
The trial court sitting without a jury found for the plaintiff for the amount claimed, and from that judgment the defendant appeals.
It appears that there was in existence another policy of the defendant on the life of Slomienski which had been issued some years previously. The plaintiff was also named as beneficiary in that earlier policy. The premiums on the policy had not been paid and it had lapsed on February 12th, 1936. The weekly premium of the first policy was seventy-five cents per week, and on the second policy fifty cents per week. It does not appear in what amount the first policy was written. Notwithstanding the lapsing of the first policy, it had certain extended period of coverage, and had certain cash surrender value.
Under date of November 27th, 1936, the plaintiff wrote the defendant asking for payment of the cash surrender value of the first policy, Exhibit D-5. In pursuance therewith the defendant issued its check to plaintiff for the sum of $101.10 under date of December 8th, 1936, Exhibit D-3, and received her receipt therefor, dated December 1st, 1936, which was also signed by the insured.
Under date of December 7th, 1936, the application was signed by Slomienski for the new policy which was issued December 16th, 1936. In that application representation is made that the applicant was: (1) in sound health, (2) that he was free from all physical defects and infirmities, (3) that he had not, within the five years previous thereto, had any sickness, injury or surgical operation, and (4) that he had not, within the previous five years, received treatment in any
hospital, dispensary, sanitorium or other institution. The applicant certified that the representations were true, and made for the purpose of inducing the defendant to issue the contract of insurance. This application was not attached to the policy nor therein referred to.
The defense offered in evidence this application to show that fraud was practiced in the procuring of the policy, claiming that untrue statements had been given as ...